Metro Seeks to Dodge Liability in Conservatorship Thefts

By Walter F. Roche Jr.

Citing a previously undisclosed order by a probate judge delegating some of his powers to a court official, Metro government is asking a judge to dismiss a suit that would force local taxpayers to reimburse a ward for thousands of dollars that was stolen from him by a court appointed conservator.
In a recent filing in a longstanding suit in Davidson Circuit Court, Metro lawyers argued that under the Dec. 16, 2003 order by Probate Judge David "Randy" Kennedy, Probate Master Robert Bradshaw's actions were, in effect, actions by the judge himself.
"Essentially the order permitted the probate master to stand in the shoes of Judge Kennedy," the filing states.
As a result, the Metro filing concludes, Metro cannot be held liable for the $157,907 admittedly stolen from Donald Griggs by John E. Clemmons, the former conservator now serving a lengthy jail term for that and other thefts.
In a parallel filing in another case, Metro is also denying responsibility for $515,907 stolen by Clemmons from another ward, William C. Link.
In that case as well as the with the Griggs case, Metro also contends the statute of limitations to challenge the probate court actions has long since passed.
In opposing filings in the same two cases, Paul Gontarek, who took over from Clemmons as conservator when the thefts were uncovered, has asked for summary judgment against Metro in both cases due to the failure of the Probate Clerk's office to properly monitor Clemmons' activities.
"The probate clerk's office failed to ensure proper accountings were filed," the Gontarek motion states, adding that Clemmons failed to file any annual accountings in the Link case for a decade.
The two suits, both before Senior Judge Ben Cantrell, are the remaining outgrowths of a scandal that erupted when Clemmons was caught stealing from wards he had been assigned to protect. The Nashville attorney, then a fixture in Davidson probate court, eventually pleaded guilty to multiple theft charges and is serving an 18-year prison sentence.
Following the discovery of Clemmons' actions, Judge Kennedy named Gontarek to succeed the imprisoned jurist. Gontarek then filed suit against Metro seeking to recover some but not all of the money Clemmons admitted to stealing.
Gontarek's motion, filed by attorney Patrick Mason, also argues that the duties of the probate clerk to monitor actions of conservators and review mandatory annual accountings "are not discretionary."
The "failure of the probate clerk's office to carry out their statutory duty was the proximate cause of the financial damage," the Mason filing states.
Metro lawyer Melissa Roberge, however, argued that Clemmons bore sole responsibility for the thefts and cited judgments against the disbarred lawyer obtained by Gontarek for the full amount.
Also cited by Metro was an affidavit filed by a probate court official stating that the Clemmons case had been placed on a hold list which short circuited regular warnings when annual reports became due.
"A hold removes a case from system tracking," the affidavit states.
Metro also contends that the probate clerk's office did not have the legal authority to force the filing of an annual accounting.
Cantrell has scheduled a hearing for June 10 on the opposing motions.
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